What Is Advocacy?

Issue Identification, Research, and Analysis

Lobbying For or Against Legislation

Litigation

Building Relationships with Legislators

All of the Above

The answer is, of course, "E—all of the above"! Advocacy can be any number of things: something as simple as dropping by a legislator's office to say "hello" or as complex as litigation. Any activity that supports an idea or cause is advocacy, including such things as: lobbying a bill; relationship building; and educating legislators and the public.

By reading through these materials you'll learn the how-tos of grassroots advocacy in greater detail. The lists of activities are not exclusive—get creative and come up with new ideas! As a physician, you are the professional best able to advocate on behalf of health care issues. No one is a better expert on these issues, and legislators need and want to hear what you have to say about them. Because legislators have to deal with massive amounts of legislation on a variety of topics, they can't be experts on everything. A physician advocate can be one of those experts, providing personal insights into the problems that patients and physicians have within the health care system.

Before You Start: Understand the Law

First, understand that advocacy by it's broad definition is not always lobbying. However, the definition of lobbying is equally as broad and may be different from state to state. Lobbying (aka advocacy) by a 501(c)(3) or a 501(c)(6) organization IS LEGAL, but before embarking on any kind of advocacy initiative, you must take a moment to examine your state and local lobbying laws as well as the IRS regulations.

Lobbying activities are not clearly defined by the IRS, but generally, lobbying is considered to be contacting legislators and their staff members (either by phone, in writing, or in person) to talk about pending or proposed legislation and regulations. This broad definition of lobbying by the IRS also has been extended to newsletters and other types of membership communications when a particular publication contains information about current or pending legislation or regulations, and especially if members are encouraged to contact their elected officials.

There are distinct differences between what is permissible at a state or local level and what is permissible at the federal level. Remember, it's the branch of the government that determines which laws—state or federal—should be followed—NOT where the event is taking place. For example, hosting an event for a local U.S. Representative would be regulated by federal laws, whereas hosting the same event for a State Representative would be regulated by state law. (If an event includes both of them at the same time, the state law applies to the state representative and the federal law applies to the federal representative.)

The complexity of these laws and regulations should not prohibit or deter individual surgeons or chapters from becoming involved in legislative and political processes. However, chapter leaders should plan to obtain expert legal advice prior to engaging in certain legislative and political activities. In particular, chapter leaders should consult with the American College of Surgeons' Division of Membership and/or a tax attorney/advisor with questions about lobbying and political expenditures. Fellows and chapter leadership may also contact the College's Division of Advocacy and Health Policy.

State Laws

State and local laws vary from state to state, so always check with your state as to what constitutes lobbying and any reporting requirements for this activity. Different states regulate lobbying through different offices; Appendix Two provides a list of state government departments that deal with lobbying laws. Because some state lobbying laws are more relaxed than others, it is critical to know what activities are permitted. For example, you may not be allowed to give a cup of coffee to a State Senator in one state, while other states have unlimited "gift-giving." In another state you may not be allowed to discuss pending legislation with an elected official without registering as a lobbyist—at the same time, though, you may talk about general "issues" or answer direct questions put to you by the official. The bottom line is check on the law before you do anything.

Federal Rules & Regulations

501(c)(3)

501(c)(6)

Definitions according to the IRS code:

Charitable Organizations: The exempt purposes set forth in IRC Section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening of neighborhood tensions; elimination of prejudice and discrimination; defense of human and civil rights secured by law; and combating community deterioration and juvenile delinquency.

Business Leagues: A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. Trade associations and professional associations are business leagues. To be an exempt, a business league's activities must be devoted to improving business conditions of one or more lines of business as distinguished from performing particular services for individual persons. No part of a business league's net earnings may inure to the benefit of any private shareholder or individual and it may not be organized for profit to engage in an activity ordinarily carried on for profit (even if the business is operated on a cooperative basis or produces only enough income to be self-sustaining). The term "line of business" generally refers either to an entire industry or to all components of an industry within a geographic area. It does not include a group composed of businesses that market a particular brand within an industry.

Tax Exempt?

Yes

Yes

Considered a Non-profit?

Yes

Yes

May an organization engage in attempts to influence legislation? (i.e. lobbying?)

It may not attempt to influence legislation as a substantial part of its activities.

Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure. It does not include actions by executive, judicial, or administrative bodies.

An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.

Organizations may involve themselves in issues of public policy without the activity being considered as lobbying. For example, organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner without jeopardizing their tax-exempt status.

Yes

How much lobbying is allowed?

May only lobby on an "insubstantial basis" (Most tax advisors agree that expenditures are insubstantial if they are less than 5 percent of the total budget.) Groups may also "elect" to come under the 1976 lobby law.

No limits—providing that the lobbying is related to the organization's exempt purpose.

What is the dollar amount that can be spent on "lobbying expenditures"?

Those who have NOT elected to be included in the 1976 lobby law are subject to the insubstantial test.

In 1990 the IRS published a statement urging nonprofits to "elect" in to the 1976 law and NOT fall under the "insubstantial" test.

Those who do "elect" may spend up to 10 percent of the organization's total budget. A chapter can make a special election under the tax code to spend up to 30 percent of its total budget on lobbying, dependent upon the size of the overall budget.

An organization may spend up to 100 percent of its budget on lobbying expenditures.

If an organization decides to spend money on lobbying activities at the State OR Federal level, what does it need to do?

Organizations electing to use the expenditure test must file Form 5768, Election/Revocation of Election by an Eligible IRC Section 501(c)(3) Organization to Make Expenditures to Influence Legislation, at any time during the tax year for which it is to be effective. The election remains in effect for succeeding years unless it is revoked by the organization. Revocation of the election is effective beginning with the year following the year in which the revocation is filed.

The de minimus rule provides that, if a chapter spends less than $2,000 per year on lobbying, no notification of members is required, and no further documentation to demonstrate compliance is required.

If a chapter's lobbying expense exceeds $2,000 in a year, then the chapter needs to determine in advance the percentage of the total budget that will be spent on lobbying, and notify the chapter members on their annual dues statement that this percentage of their annual dues cannot be deducted on their personal income tax filing.

Rather than notifying members about the percentage of their dues that is not deductible on their personal income tax, chapters can pay a "proxy tax." The "proxy tax" alternative requires the chapter to pay taxes on the total amount of lobbying expenses, which are computed using the corporate income tax rate.

May an organization engage in political campaign activities?

No. Organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including the presentation of public forums and the publication of voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity.

In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not constitute prohibited political campaign activity if conducted in a non-partisan manner. On the other hand, voter education or registration activities with evidence of bias that: (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

Yes. Provided that such intervention does not constitute the organization's PRIMARY activity.

Federal: Yes. See "types of activity allowed."

State: It depends on the state. Check with your local ethics office.

Are political contributions allowed?

No. A 501(c)(3) is prohibited from making political contributions or expenditures to a candidate or PAC, including in-kind contributions.

Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise tax.

Federal officials: No. Election law prohibits all corporations, including incorporated associations, from making campaign contributions to candidates for federal office. The Federal Election Commission (FEC) considers contributions to include direct and indirect payments or gifts of money, or any services, or anything of value. However, organizations may create a separate segregated fund (a political action committee, or "PAC") to finance political activities, including contributions to candidates. While an organization cannot create or direct a separate segregated fund, a separate organization with similar interests, including a newly created one, may do so. In either case, separate segregated funds must file periodic reports, maintain books and records, and take steps to assure that the fund receives and makes only legal contributions.

State Officials: Maybe. It depends on the state. Check with your local ethics office.

Types of activities allowed

May undertake activities on behalf of or in opposition to a public policy issue, whether federal, state, or local.

This may include contacts with policy makers regarding regulations, a "volunteer" lobbyist (a citizen who receives no reimbursement), and communications with members on legislation where no action is encouraged.

Reponses to a written request from a legislative body, self-defense activity (i.e. if the proposed regulations threaten to make illegal the organization).

Releasing study results of "nonpartisan analysis, study or research" on an issue.

May engage in some legal political activity, although this can never be its primary mission. Direct political expenditures are subject to a special tax.

May communicate with members about any matter, including a partisan political one.

Can encourage their members to register, vote, or otherwise participate in the political process, such as making personal campaign contributions to the candidates of their choice or volunteering for campaign work.

May also solicit their members on behalf of an individual candidate. For example, the executive director or officer could ask an individual member of the 501(c)(6) organization to make a personal contribution to a candidate, attend a political fund-raising event hosted by others, or individually host such an event.

Encourage political involvement by the general public, as long as any information disseminated is non-partisan in nature. In other words, such information may not indicate any political affiliation or favor any specific candidates.

Types of activities disallowed

Prohibited from undertaking activities on behalf of or in opposition to any candidate for public office, whether federal, state, or local. This includes amounts paid to a candidate for speeches, travel, polls, publicity, or any other activities that serve to promote that individual's candidacy. Violations may result in loss of tax-exempt status and tax penalties.

An organization cannot "buy a table" with its own treasury funds at a fund-raising event, though its members could individually purchase tickets.

Organizations also are prohibited from facilitating political contributions by their members (e.g., while they may provide the address of a candidate's campaign office, they cannot provide an envelope addressed to the campaign). In addition, if the costs of partisan communications on behalf of an individual candidate reach $2,000 for any single election, the association must file a report with the FEC.

What can individuals do?

Federal: The political campaign activity prohibition is not intended to restrict free expression on political matters by leaders of organizations speaking for themselves, as individuals. Nor are leaders prohibited from speaking about important issues of public policy. However, for their organizations to remain tax-exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official functions.

Under federal election law, an individual may contribute up to $1,000 to any one candidate with respect to any one election (i.e., a primary, general, or special election). In the aggregate, an individual's political contributions in any calendar year, including those made to any political action committee, are limited to $25,000.

An individual may offer the use of his or her home for candidate- and political party-related activities. An individual living in an apartment or other residential complex may offer the use of a recreation room in the complex for the same kinds of activities provided that the room is available without regard to political affiliation (any nominal fee for use of the room is not considered a contribution). In either case, the cost of related invitations, food, and beverages voluntarily provided by the individual host are not considered a political contribution as long as these costs do not exceed $1,000 per candidate for any single election.

Contributions to the political campaign of a sitting Member of Congress should be sent to the candidate's campaign committee or office, and should not be presented during a meeting in his or her Congressional office. Contributions to other candidates are also best sent to the campaign rather than given directly to the candidate. In all cases, individuals making a political contribution should in no way imply that it comes as a quid pro quo for something the individual has done or will do.

To avoid potential attribution of their comments outside of organization functions and publications, organization leaders who speak or write in their individual capacity are encouraged to clearly indicate that their comments are personal and not intended to represent the views of the organization.